The treatment of the gross violations of human rights – including the direct killing of civilians – in Libya and in Syria by the UN Security Council has been markedly different. Following the death of Muammar Gaddafi and the ‘Declaration of Liberation’ issued by the Libyan National Transitional Council on 23 October, the UN Security Council ended NATO’s six-month intervention in Libya, authorised by Resolution 1973 (2011). The crimes against humanity being committed by Gaddafi’s regime before the intervention presented legal grounds, if only belatedly, for implementing the principle of the Responsibility to Protect (R2P), even if the armed intervention – allegedly aimed at protecting civilians – overlapped with a civil war situation. There are, however, no signs of the Security Council making a decision to apply R2P regarding crimes against humanity being committed by the Assad regime in Syria.

The Syrian President, Bashar Assad, recently provided new grounds for acting on Chapter VII of the UN Charter. By declaring that external intervention in Syria will provoke an “earthquake” that “will burn the whole region”, he has openly acknowledged that the situation in Syria seriously and directly affects regional – and thus international – security. The risk of fragmentation and instability that his regime has brought about does indeed warrant immediate action by the Security Council, and not only in the context of R2P.

The arguments put forward by those members of the Security Council opposing sanctions on the Syrian regime are generally at odds with international law. There is, however, one exception which relates to the way in which the Security Council’s authorisation to use force was implemented in Libya : in spite of the triumphant mood prevailing in NATO headquarters following the outcome of the intervention, the armed operations in Libya did not respect the consensus that emerged from the series of armed interventions undertaken by the international community since 1991. The question thus remains : what can be done under the present circumstances to protect victims of the heinous crimes being committed in Syria ?

UN action and debates at the Security Council concerning Syria

On 3 August 2011, the Presidency of the UN Security Council delivered a statement on behalf of its members which acknowledged the existence of ‘widespread violations of human rights’ in Syria, and voiced regret over the lack of progress on the implementation of the commitments to reform made by the Syrian authorities. It also stated that those responsible for the violence should be held accountable. The Council requested the Syrian government, in particular, to ‘fully respect human rights under applicable international law’, and to ‘alleviate the humanitarian situation in crisis areas by ceasing the use of force against affected towns, to allow expeditious and unhindered access for international humanitarian agencies and workers, and cooperate fully with the office of the High Commissioner for Human rights’.

The Syrian Government completely ignored the statement, not even offering minimum cooperation with UN human rights structures. On 14 October, UN High Commissioner for Human Rights, Navi Pillay, confirmed that the Syrian government had ‘manifestly failed to protect its population’, and – indeed taking into account the inaction of the Security Council – added that ‘the onus is on all members of the international community to take protective action in a collective and decisive manner, before the continual ruthless repression and killings drive the country into a full-blown civil war’. The UN Human Rights Council, for its part, had already condemned the continued grave and systematic human rights violations committed by the Syrian authorities and called upon them to protect their population and fully comply with their obligations. A resolution was adopted during a special session on 22-23 August, and also provided for the establishment of an Independent Commission of Inquiry, with the task of determining the facts and circumstances of reported human rights violations and identifying those responsible so that they are held accountable. The resolution was adopted by 33 votes in favor, although there were four votes against (China, Cuba, Ecuador, and the Russian Federation) and nine abstentions. However, despite the adoption of this resolution over three months ago, the Commission of Inquiry has not yet been able to travel to Syria due to the lack of cooperation of the Syrian authorities.

An overwhelming majority of the international community, including all members of the Security Council (with the exception of Lebanon), hold the view that the Syrian authorities are responsible for systematic human rights violations which very likely amount to crimes against humanity. It is therefore absurd that the UN Security Council was unable to adopt a resolution which would impose sanctions on Assad’s regime, something which would have constituted a further step towards protecting the population threatened by the regime’s crimes.

Discussions held at the Security Council on 4 October were indeed tense. The arguments put forward by those opposing the draft resolution tabled by four European states were generic and legally irrelevant. Some countries expressed the view, for example, that sanctions may not ease the situation ; a view which has not prevented them from voting in favour of (largely ineffective) sanctions in similar cases. They did not change their minds even after an explicit reference to Article 41 of the UN Charter was incorporated into the draft to make clear that only non-military measures would be envisaged. Ambassador Vitaly Churkin on behalf of the Russian Federation mentioned that his country had been working with China on another draft resolution based on the principle of non-intervention, which was apparently supported by Brazil, India and South Africa. Moreover, he made it clear that the Russian Federation (and potentially other states) was ‘alarmed’ that compliance with Security Council resolutions in Libya had been considered a ‘model for future action’ by NATO, calling it a temptation which ‘should be excluded from global practice’. Although South Africa abstained, its Ambassador, Baso Sangqu, in a reference to the first draft of the resolution, stressed that the Council ‘should not be part of a hidden agenda for regime change’ .

The roots of the problem

The lack of consensus on how to implement R2P among the permanent members of the Security Council, but more generally between most Western democracies and the so-called emerging powers together with Russia, may thus affect future decisions of the Council concerning the identification of R2P situations. This disagreement on how to respond to crimes may in the end block any recognition of crimes. The problem is as crucial as it is extremely difficult to address. Consensus on how to operationalise the protection of populations at risk – or rather, the protection of humanitarian agents and goods alleviating their plight – was in fact built during the 1990s but has not practically been applied during the first decade of the present century due to a daunting emphasis on the ‘war against terror’.

Stemming from UN-mandated armed operations during the 1990s, the current standard for military operations being considered legitimate was – and still is, in my view – to respect protection requirements directly expressed by UN civilian agencies deployed on the ground. The use of armed force was authorised by the Security Council only to the extent that it created the conditions in which international humanitarian action of UN civilian agencies – as well as of those NGOs working in cooperation with them – could immediately operate. From a practical point of view, it was not the military who dictated the strategy in the field, but UN civilian agencies who specifically asked them to escort their convoys or protect their facilities. Thus, in Bosnia, NATO was authorised to protect the UN peacekeeping operation, UNPROFOR, which was in turn authorised to protect the agencies providing for the basic needs of civilians, so that any ‘direct’ use of force – i.e. not requested by international civilian agencies – would have been considered ‘disproportionate’ and thus ‘illegitimate’. Such criteria allowed for adopting very quick decisions of the Council as soon as states volunteered to enforce the creation of conditions for humanitarian action. This was indeed confirmed by the creation of temporary UN civil administrations in East Timor (UNTAET) and Kosovo (UNMIK) in 1999.

According to the consensus on the use of force to protect humanitarian action, it is the complete subordination of military force to international civilian authorities and actors which provides legitimacy under international law, even to interventions authorised by the Security Council. The underlying assumption is that military structures are not adequate for implementing human rights principles, so that armed intervention authorised by the Council (ius ad bellum) does not mean that all armed strikes are legitimate (ius in bello).

Such consensus seems practically wrecked nowadays due to the US embracing unilateralism over the past decade and a progressive disregard of the UN civilian structures as primus inter pares – which of course requires providing the necessary resources on the ground. Even the EU, which was perhaps its most enthusiastic advocate, is cutting down its ambitions to strengthen the civilian dimension of crisis management. It is only natural, then, that NATO attempts to take over in leading operations for the protection of civilians, but the result will be devastating for the international consensus painfully built during the 90s.

There have not been, however, any alternative proposals made to effectively protect the Syrian population by the states either vetoing or abstaining in the vote of the draft resolution, or from any other members of the international community. The Security Council has not even honoured its plea that all those responsible for the violations of human rights in Syria should be held accountable by deferring the case to the International Criminal Court (ICC). Does the Council expect that a regime responsible for such wicked crimes will comply with such pleas as an exercise of self-accountability ? The question regarding Syria and similar future cases remains wide open. As recalled by the UNHCHR, the onus is now on all members of the international community, and responsibilities cannot be ignored merely by criticising previous armed interventions led by others.

What can be done at the international and regional level, short of using force, in the absence of a Security Council decision ?

The 2005 UN Outcome Document endorsing the principle of R2P entrusts the Security Council with the responsibility to act in order to protect victims of the most serious crimes in the framework of the UN Charter, but inaction by the Council may not render crimes lawful. Since the Security Council bears primary but not exclusive responsibility regarding armed responses to threats to international peace and security, its flagrant inaction necessarily entails devolution of such capacity to members of the international community. Third parties willing to protect victims of massacres perpetrated by their own governments whose plight was not acted upon by the Council are thus entitled to do so, including by using force under certain circumstances, in as much as they fully respect all relevant international principles.

As members of the international community, states do not have a particular responsibility or obligation to put an end to human rights violations in other states, but rather a right to do so, particularly concerning sanctions which do not entail the use of force. In contrast, states are under certain international obligations to protect victims of a massacre taking place in a third state. The non refoulement of those individuals escaping persecution, which is the fundamental principle of International Refugee Law, guarantees that victims can find temporary safe haven in neighbouring countries or elsewhere as soon as they cross the border of the country in which their life and freedom is potentially at risk. Considering the Statement of the Presidency of the Security Council, there are no legal grounds to deny this right to temporary asylum to any persons fleeing Syria.

The international community should thus make all arrangements so that non refoulement is granted to all those fleeing Syria. All necessary means should be provided to the UN High Commissioner for Refugees so that neighbouring countries do not bear the cost of hosting refugees, including through devising resettlement programmes in case the situation endures. In this context, the European Union can – but is unlikely to – honour IRL principles by creating a specific category of persecuted persons as contemplated in Directive 55/2001. This legal instrument would be applied for the first time, precisely in a situation where no mass influx is expected in Europe, in order to send the strongest political message to President Assad. The fact that economic sanctions have not prevented the massacre indeed calls for effective commitment to the victims. Likewise, the fact that the situation in Syria has not been deferred to the ICC does not entail that the principle of universal jurisdiction against the most serious crimes does not apply. Although states are fatally constraining the possibility of the respective judiciary prosecuting crimes against humanity committed beyond their borders it should in fact be made contingent to effective jurisdiction of the ICC.

Regional organisations are theoretically better equipped to deal with the most difficult problems of their member states, but the likelihood of divisions and thus paralysis is also extremely high. The League of Arab States is learning very quickly that mass violations of human rights are anything but ‘internal affairs’. On 17 October, the League called the Syrian government and the opposition together for a national dialogue in Cairo under its supervision, establishing 31 October as a ‘deadline’ for the initiative to succeed. On 30 October, Qatar’s foreign minister, Sheikh Hamad bin Jassem al-Thani, demanded on behalf of the League’s ad hoc ministerial team that President Assad take ‘concrete steps’ to avoid ‘what happened to other countries’, which was interpreted as a reference to NATO’s military intervention in Libya. After having severely criticised any foreign ‘interference’ in Syria, Arab leaders acknowledge now that there is a risk of a ‘massive storm’ in the entire region as a result of further inaction, a metaphor exactly opposite to that of the ‘earthquake’ that would follow external intervention used by Assad just a couple of days before.

The ‘Arab solution’, as called by the League’s Secretary General, Nabil al-Arabi, was formally agreed upon by the Syrian Ambassador to Egypt on 2 November. It would have entailed the immediate withdrawal of tanks from the streets and the release of all political prisoners as the initial steps of a ‘road-map’ which should allow for dialogue between the authorities and the opposition, with journalists, rights groups and Arab League representatives being allowed to monitor the situation in the country. If Syria complies, the Arab League would have indeed acted as a genuine ‘regional arrangement’ of Chapter VIII of the UN Charter even in the absence of a relevant Security Council decision. The plan indeed reflected the plea outlined in the UNSC Presidential Statement of 3 August.

The magnitude of the problem had indeed made the League change its initial non-interventionist rhetoric into a language anticipating regional action independently of the Syrian regime’s attempts to escape its responsibilities. It was not difficult to guess that Assad was again trying to buy time, but the death toll did not stop. The League finally suspended Syria’s membership on 12 November, while calling on Arab states still keeping ambassadors in Damascus to withdraw them and announcing economic and other unspecified political sanctions. The League has already initiated direct talks with the Syrian National Council – representing the opposition to the regime – which will trigger its recognition internationally as the legitimate transitional representative of Syrian people.

International pressure on Assad is thus likely to continue to mount dramatically ; China has already called on the Syrian Government to put an end to the repression. But new and more acute dilemmas are taking shape as regards the fate of the Syrian population. The League certainly lacks experience in taking coercive measures against its members ; it also lacks regional principles on the use of force as developed notably by the African Union. Its claim to the Security Council for the enforcement of a ‘no-fly zone’ in Libya last March was indeed decisive, particularly since the US had conditioned its willingness to act on being given the green light by Arab states in order not to be called ‘interventionist’ this time. Yet when the point of no return has been reached by a dictatorial regime, economic and political isolationism and other forms of international pressure short of the use of force usually contribute to intensify persecution and repression.

The legality of a ‘no-fly zone’ in Syria

This time, however, the Security Council will likely fail to adopt a decision to apply R2P even upon the Arab League having taken a more determined stance. It seems that Russia and China – in spite of its recent public condemnation of Assad – will veto a decision that paves the way for an intervention led either by NATO or by the countries that played a prominent role in the armed intervention in Libya, namely France, the UK and the US. Of course, other volunteers can approach the reluctant members of the Security Council offering guarantees of respect for the principle of proportionally in the use of force, but volunteers are scarce nowadays. On the one hand, emerging countries such as India, China or Brazil are still unable or unwilling to project force beyond their immediate neighbourhood, even less so when their most direct interests are not at stake according to the most traditional interpretation of ‘security’. On the other hand, countries that are traditionally willing to take part in international protection operations, most of them also NATO members, are undergoing drastic cuts in their defence budgets due to the economic crisis.

Neighbouring states directly suffer the consequences the most of one state violating basic international human rights principles, and are thus more willing to intervene. Under the present circumstances, Turkey appears to be the most likely, if not the only, candidate to undertake or trigger international action on behalf of the victims of mass violations of human rights in Syria. The most powerful neighbour of Syria has indeed undergone a drastic change of heart regarding its former ally, precisely when Syria’s internal situation was directly affecting its sovereignty ; and the possibility of Turkey crossing the border in order to create a safe zone for refugees inside Syria has been already suggested by experts and indeed considered by the Government since last June. It is only recently that the Turkish Foreign Minister has openly acknowledged the possibility with an explicit mention to the principle of R2P. But the argument goes beyond the need of protecting populations in danger : the sovereignty of a state that is being forced to host refugees fleeing a massacre in a neighbouring state becomes clearly undermined, even by the most traditional interpretation of the word ‘security’. As a group of experts put it in 1992, ‘preventive or remedial action to deal with external or internal displacement is closely linked to state sovereignty. The issue of so-called humanitarian intervention […] also needed to be seen in this context’.

Moreover, it was precisely Turkey who indirectly initiated a new trend of the international community reacting to cases of crimes against humanity. In particular, the ‘no-fly zone’ established by the UK, France and the US in the North of Iraq in 1991 allowed for humanitarian agencies to enter Iraq and gain access to displaced Kurdish populations. The Kurds were fleeing towards the Turkish border which had been closed on the basis of national security, thus violating the principle of non-refoulement. No state of the international community contested Turkey’s decision to close the border, but the fact that a ‘no-fly zone’ was created indeed put an end to the persecution and thus to IRL basic obligations. Within a few weeks, some 1.5 million displaced persons were able to return to their villages with international assistance delivered by UN agencies, while some 500 ‘blue guards’ – most of them belonging to the security service of the UN headquarters in Geneva – carrying light arms were deployed in order to ‘monitor’ the situation. Under the ongoing discussions in the Arab League, the plan being devised to deploy between 400 to 500 observers from Arab human rights organisations in an attempt to protect Syrian civilians has its precedent here. But it will be difficult – if not impossible – to apply if observers do not have the support of military forces that create a ‘space’ where they can work.

The question now is to what extent can such an intervention be considered a precedent in the absence of a decision of the Security Council for an eventual armed intervention in Syria ? In 1991, the Security Council declared itself in Resolution 688 to be ‘gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish-populated areas, which led to a massive flow of refugees towards and across international frontiers and to cross-border incursions which threaten international peace and security in the region’. Consequently, the Council established the obligation of Iraq to put an end to the repression and insisted that Iraq granted immediate access of humanitarian agencies to all those in need of assistance in all parts or Iraq. The Council also requested the UN Secretary-General use all the resources at his disposal, including those of the relevant UN agencies, to urgently address the critical needs of the refugees and the displaced Iraqi population.

A substantial part of Resolution 688 (1991) is indeed similar, if not identical, to that contained in the Council Presidential Statement on 3 August regarding Syria. It is obvious that a Presidential Statement cannot contain an authorisation to use force, but Resolution 688 (1991), which could have but did not contain such authorisation, was nevertheless regarded as a sufficient legal basis for the creation of a ‘no-fly zone’ in Iraq. The question of the legality of a ‘no-fly zone’ in Syria does not lie in the lack of principle of R2P, as R2P fully respects human rights principles. This notably includes the principle of proportionality in the use of force, which requires that force is always subordinate to the needs expressed by UN civilian agencies whose universal mandates include the provision of assistance to populations in need.

Concluding remarks

What, then, are the differences between 1991 and 2011 ? The armed intervention to create a no-fly zone in the North of Iraq in 1991 took place fully in line with the obligation imposed on the local authorities by the Security Council in Resolution 688, which allowed civilian humanitarian agencies free access to the Kurdish area. The enforcement of a ‘humanitarian space’, using force where necessary to create the conditions required for international civilian actors to be able to protect populations at risk, became the key criterion for legitimising military intervention in all relevant situations during the 1990s.

This humanitarian consensus, which was broken by both US-led interventions in Afghanistan and Iraq during the last decade, has been broken again in Libya by NATO and by the three states that contributed heavily to creating it when volunteering to protect Kurdish populations in 1991. As a consequence, NATO is viewed today with much suspicion, particularly by those states which have more recently acquired a greater international role. The misleading use of force in Libya has explicitly served as the main argument which prevents a decision by the Security Council, the body that would establish sanctions against the Syrian regime. The breach of the consensus on how to operationalise the principle of R2P is thus jeopardising its interpretation and application.

The chance of reinvigorating such consensus is, however, slim in the absence of volunteers. States today are not only less willing than in the 1990s to protect populations at risk in third states, but they tend to disregard the efforts of the UN Secretary-General and UN civilian agencies, who should in fact determine the specific needs of armed protection required to perform their respective international mandates on the ground. As the case of Libya has demonstrated, implicit or explicit accusations of disproportionate use of force directed to NATO forces by most emerging states can not be dismissed precisely due to the breach of the international consensus on how to implement decisions of the Security Council.

Even if all members of the international community had a right to respond had the Security Council not ignored its responsibility, regional organisations and neighbouring states would be more inclined to use force as a last resort if only for reasons based on the most traditional interpretation of ‘national security’. In this case, mass influxes of refugees would be imposed on neighbours by the state violating the human rights of its own population. The last-resort solution thus entails a strong coalition including Turkey and the Arab League which does not exclude the use of force to create a space that allows civilian actors to protect Syrian citizens within Syria. The problem of how to protect populations threatened by their own governments thus remains unresolved in the current international order. Inaction of the Security Council in R2P situations may give way to undesired unilateral interventions, which should be deemed legitimate in as much as they respect the consensus emerging upon the creation of a ‘no-fly zone’ in the North of Iraq in 1991. Despite R2P being a brand-new label for action, the chances of legal protection from other states for populations threatened by their own governments may have in fact shrunk over the last twenty years.